MR JUSTICE BURTON
Approved Judgment
Secretariat) and again as set out in paragraph 47 above, taking account of the
submissions and criticisms of the Claimants and the observations of the
Tribunal in closed hearing. We are satisfied that the Disclosures cast a clear
and accurate summary or résumé of that part of the evidence given in the
closed hearing which ought to be disclosed: and that the balance of the
evidence and submissions given in closed hearing was too sensitive for
disclosure without risk to national security or to the NCND principle.
(iv)
We are satisfied that the description of the circumstances in which, when a
request is made, there is an existing warrant is clear. Although the reader of
this judgment will be enabled to understand the position better when, in
relation to the s.8(4) issue, fuller exposition is given below, it is clear that the
preconditions are either the existence of a s.8(1) warrant or the existence of a
s.8(4) warrant within whose ambit the proposed target’s communications fall,
together, if the individual is known to be within the British Islands, with a
s.16(3) modification.
51.
In relation to paragraph 1 of the Disclosure, this subjects any requests pursuant to
Prism and/or Upstream in respect of intercept or communications data to the RIPA
regime, save only for the wholly exceptional scenario referred to as a 1(b) request.
A 1(b) request has in fact never occurred, as the ISC has recognised as set out at
paragraph 5 of its Statement, (cited in paragraph 23 above), and as now confirmed
by the Respondents, as set out in paragraph 48(2) above.
52.
In relation to paragraph 2 of the Disclosure, by which the same obligations and
safeguards are applied to the receipt of any intercept or communications data
pursuant to Prism and/or Upstream as apply when they are obtained directly by the
Intelligence Services as a result of interception under RIPA:
53.
(i)
We must address below, with regard to the s.8(4) Issue, the nature and
adequacy of those obligations and safeguards resulting from and relating to
interception under RIPA, and, subject to (ii) below, the same considerations
will apply.
(ii)
As Mr Squires accepted, the clarification given within paragraph 1 of the
Disclosure, that there will only be a request under Prism and/or Upstream,
by reference to the existence of a s.8(4) warrant, which relates to an
individual known to be within the British Islands, if a s.16(3) modification
is in place, means that the RIPA safeguards under ss.15 and 16 (dealt with
in detail below) in fact apply: except as he pointed out, in respect of a 1(b)
Request so far as s.16 safeguards are concerned.
The one matter of concern is this. Although it is the case that any request for, or
receipt of, intercept or communications data pursuant to Prism and/or Upstream is
ordinarily subject to the same safeguards as in a case where intercept or
communication data are obtained directly by the Respondents, if there were a 1(b)
request, albeit that such request must go to the Secretary of State, and that any
material so obtained must be dealt with pursuant to RIPA, there is the possibility
that the s.16 protection might not apply. As already indicated, no 1(b) request has
in fact ever occurred, and there has thus been no problem hitherto. We are however
satisfied that there ought to be introduced a procedure whereby any such request, if